Filed 5/6/10
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SHIRLEY MARIE BRONEY, C060831
Plaintiff and Appellant, (Super. Ct. No.
34-2008-00008231-WM-
v. GDS)
CALIFORNIA COMMISSION ON TEACHER
CREDENTIALING,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento
County, Patrick Marlette, Judge. Affirmed.
Rothschild, Wishek & Sands and Jon-Paul Valcarenghi for
Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press,
Assistant Attorney General, Niromi W. Pfeiffer and Susan E.
Slager, Deputy Attorneys General, for Defendant and Respondent.
Rejecting statutory terms, such as “immorality,”
“unprofessional conduct,” or “moral turpitude” as overly broad
to use as grounds for discipline of public school teachers, the
1
California Supreme Court created its own seven-part test to
assess whether a misbehaving teacher is fit to teach. (Morrison
v. State Board of Education (1969) 1 Cal.3d 214, 224-225
(Morrison).)1 We must apply that test here.
Plaintiff Shirley Marie Broney is an elementary school
teacher. Between 1987 and 2002, she was convicted of three
drunken driving offenses. Defendant California Commission on
Teacher Credentialing (the Commission) took note, held a
hearing, found plaintiff was unfit to teach, and suspended her
teaching credential for 60 days. It stayed that suspension
subject to plaintiff successfully completing a three-year
probation.
Plaintiff petitioned for extraordinary relief from the
Commission‟s decision, but the trial court denied her petition.
It found her latest conviction rendered her unfit to teach per
se. It also determined upon weighing the evidence under the
Morrison test that the Commission‟s discipline was not arbitrary
or unreasonable.
Plaintiff appeals, claiming the trial court erred by
applying a per se rule. She also asserts no substantial
evidence could support the Commission‟s decision. We agree with
plaintiff that the trial court applied the wrong test. However,
its error was not prejudicial. It is not reasonably probable
that the court would have reached a different result had it
1 The test has been promulgated as a regulation. (See Cal.
Code Regs., tit. 5, § 80302.)
2
applied the Morrison test to the issue of fitness to teach
instead of a per se test, as its analysis of the Commission‟s
discipline under the Morrison test demonstrates plaintiff was
unfit to teach. We thus affirm the judgment.
FACTS AND PROCEDURAL HISTORY
1. Criminal background
Plaintiff was convicted in 1987 at the age of 21 of one
count of driving under the influence. (Veh. Code, § 23152,
subd. (a).)2 Plaintiff did not have a teaching credential at
that time. The incident happened at night on a weekend. It was
not near school property and no children were involved. This
conviction was expunged in 1992 under Penal Code section 1203.4.
In 1997, plaintiff was convicted of driving under the
influence and driving with a blood-alcohol content of .08
percent or greater. (§ 23152, subds. (a), (b).) Plaintiff had
just begun her student teaching at the time. This incident also
happened at night on a weekend. It was not near school property
and no children were involved.
The trial court placed plaintiff on probation for three
years. It also ordered her to complete a 90-day first offender
drinking driver program. Plaintiff also attended Alcoholics
Anonymous as part of this program. This conviction was expunged
in 2007 under Penal Code section 1203.4.
2 Subsequent references to sections are to the Vehicle Code
unless designated otherwise.
3
On November 4, 2001, at approximately 1:50 a.m., Huntington
Beach police arrested plaintiff on suspicion of driving under
the influence. This incident did not involve children or occur
on or near school property. It occurred on a weekend at night
after plaintiff had been to a bar with friends. As plaintiff
and her friends walked toward a parking garage, a police officer
stopped and spoke with them. After speaking with the officer,
plaintiff‟s friends took a taxi, but plaintiff continued to the
garage and entered her car. The officer arrested her for
driving her vehicle in the parking garage. Plaintiff failed all
of the field sobriety tests given her.
In August 2002, plaintiff pleaded guilty to driving under
the influence with a prior (§ 23152, subd. (a)), and driving
with a blood-alcohol content of .08 percent or greater (§ 23152,
subd. (b)). She also admitted an enhancement under section
23578 of driving with a blood-alcohol level of .20 percent or
greater. She stated in her plea that her blood-alcohol level
was .25 percent at the time of her arrest.
The court sentenced plaintiff to 30 days in jail, which it
allowed her to fulfill at home and at work in the classroom by
wearing an ankle bracelet. The court also placed plaintiff on
probation for three years, and it ordered her to complete an 18-
month multiple offender alcohol education program. Plaintiff
again attended Alcoholics Anonymous as part of this program.
This conviction was expunged in November 2006 under Penal Code
section 1203.4.
4
2. Credentialing history
Plaintiff first applied to the Commission in 1995 for
character and identification clearance. In this application,
plaintiff disclosed to the Commission her 1987 conviction.
In 1997, shortly after her second DUI conviction, plaintiff
applied to the Commission for a teaching credential. In this
application, plaintiff disclosed her 1997 conviction and
sentence.
The Commission granted plaintiff her credential effective
May 30, 1997. The credential authorized plaintiff to teach
multiple subject matter classes in a self-contained classroom in
grades 12 and below. This credential was valid until June 1,
2002. Subsequently, the Commission renewed plaintiff‟s
credential effective June 1, 2002, until June 1, 2007.
Plaintiff also holds a cross-cultural, language and academic
development certificate authorizing her to teach limited-
English-proficient students.
At the time of her third arrest and conviction in 2001-
2002, plaintiff was employed by the Westminster School District
in Orange County as a 5th grade teacher. She had worked for the
District since 1999.
3. Commission’s disciplinary accusation, hearing and decision
Nearly two years after her 2002 conviction, plaintiff was
notified by letter dated June 14, 2004, that the Commission had
begun an investigation into her fitness to hold a credential as
a result of her three DUI convictions. Ultimately, the
5
Commission found cause to recommend a 60-day suspension of her
credential. On November 8, 2004, plaintiff requested an
administrative hearing to challenge the recommendation.
Another two years passed until November 1, 2006, when
plaintiff was served with an accusation issued by the
Commission‟s executive director. The accusation alleged
plaintiff‟s 2001 arrest and 2002 conviction constituted
unprofessional conduct and subjected her to discipline. It
asked for plaintiff‟s credential to be suspended for a minimum
of 60 days.
a. Evidence presented at hearing
The matter was heard by Administrative Law Judge (ALJ)
Joseph D. Montoya on June 11, 2007. The Commission‟s evidence
of unprofessional conduct and unfitness to teach consisted
solely of police and government reports attesting to plaintiff‟s
three prior convictions and documentation of her credentials.
Plaintiff‟s case consisted of her testimony, the testimony
and report of a licensed substance abuse counselor, Dan Cronin,
and the testimony and evaluations of plaintiff‟s school
principal, Linda Reed. In her testimony, plaintiff admitted her
three DUI convictions.3 She denied being an alcoholic, missing
school because of drinking, working with a hangover, or showing
up to school drunk. She acknowledged she had “made some really
3 Although plaintiff admitted her third conviction, she
claimed she was not driving at the time she was arrested.
6
bad choices,” and stated she “will never, ever drink and drive
again because I have too much to lose.”
On cross-examination, plaintiff agreed that maintaining the
integrity of the teaching profession was important, and that
teachers acted as role models. She stated only two other people
knew of her 2002 conviction; a fellow teacher and her principal.
She stated she drinks on occasion, such as having a glass of
wine when she goes out to dinner at a nice restaurant, but she
does not drink and drive, even if all she has had is a glass of
wine.
Counselor Cronin was hired by plaintiff to determine if she
had a substance abuse problem and, if she did, the most
appropriate level of treatment for her. Cronin concluded
plaintiff was not an alcoholic, had a low probability of
substance dependence, and that she did not need any kind of
therapy for alcohol abuse. His conclusion was based on an
assessment of her he performed by telephone, an assessment
performed by one of his staff members, another assessment
performed by a second substance abuse counselor, and on an
evaluation of her performed by a psychologist, Jerry Brown.
Brown had found plaintiff to be “psychologically normal and
high functioning.” He found plaintiff had some probability of
“acting out,” but was of the opinion plaintiff was fit to teach.
Plaintiff does not drink during the week and limits her drinking
to the weekend, usually with dinner. In a 24-hour period of
time, she drinks from one to three drinks of alcohol. The
7
largest amount she consumed on any particular day was four
drinks. Cronin attached Brown‟s report to his report.
Under cross-examination, Cronin explained that a
probability of acting out was similar to someone who might
speed, or who might make the “mistake” of drinking and driving,
“you know, somebody that‟s more extroverted.”
The administrative law judge asked Cronin why he did not
think plaintiff was likely to drink and drive again if she has a
propensity for acting out. Cronin stated he believed “she‟s
learned her lesson, that she is remorseful, and that she‟s
consistent enough in all of her answers, and all of her testing
show that she has learned her lesson.”
Principal Reed described plaintiff as a very dedicated and
talented teacher who works well with children. Plaintiff holds
her students accountable to high standards, and most of her
students will meet grade level expectations before the end of
the year. She works very hard and is passionate about what she
does. If anything, her flaw is caring too much about her work.
Reed, whose father was an alcoholic and who had experience
dismissing employees because of alcoholism, was familiar with
the signs of alcoholism and its adverse effects on a person‟s
employment. In her experience, alcoholic employees missed
Fridays and Mondays, came in late, left early, took naps during
the day, had red bloodshot eyes, staggered around, were ill
prepared and angry, and took inappropriate actions with
children. Reed saw nothing remotely close to these traits in
8
plaintiff‟s work ethic. And, no student or parent had ever
asked about plaintiff‟s DUI convictions.
Each time Reed had formally evaluated plaintiff as a
teacher, she determined plaintiff performed satisfactorily in
every area. Reed continued to stand by her evaluations of
plaintiff at the hearing. Indeed, in many of the reviewed areas
of performance, Reed would have graded plaintiff as exemplary,
but the form used for evaluations allowed the reviewer to state
only that the teacher‟s performance was satisfactory or
unsatisfactory.
On cross-examination, Reed agreed that teachers acted as
role models. Reed believed plaintiff had made “three very poor
choices,” but she did not see how they impacted the teaching and
learning of children. She did agree, however, it was important
how a teacher acted outside of school, and that a teacher who
drank and drove, and who was arrested and convicted of DUI,
engaged in unprofessional conduct.
b. ALJ and Commission decisions
Upon reviewing the evidence, the ALJ determined the
Commission had failed to prove unprofessional conduct, and he
recommended the accusation be dismissed. The ALJ stated that
discipline may not be imposed unless the conduct is
substantially related to the person‟s fitness to teach, citing
Morrison, supra, 1 Cal.3d 214, 229. He also cited the seven
factors set out in Morrison and at title 5, section 80302, of
the California Code of Regulations which the Commission is to
use to determine whether a sufficient nexus exists between the
9
teacher‟s conduct and her fitness to teach. However, the ALJ
did not reach the issue of whether a sufficient nexus had been
shown in this case. He determined the Commission‟s evidence,
consisting only of the fact of plaintiff‟s convictions, failed
to show how her actions constituted unprofessional conduct
because it did not establish that her conduct violated any rules
or ethical codes of the teaching profession.4
The Commission rejected the ALJ‟s proposed decision. At
its March 5, 2008, meeting, the Commission adopted its own
decision and order, and it determined plaintiff had committed
unprofessional conduct and her conduct indicated she was unfit
to teach. Unlike the ALJ, the Commission relied upon the
Morrison factors (set out in greater detail below) to determine
whether plaintiff‟s misconduct rendered her unfit to teach. It
concluded her conduct did, in fact, render her unfit to teach.
The Commission suspended plaintiff‟s credentials for 60 days,
and it stayed the suspension subject to plaintiff‟s successful
completion of a three-year probationary period.
The conditions of probation required plaintiff to undergo a
psychiatric evaluation and, if needed, continuing therapy
leading to a positive evaluation; to obey all federal, state,
and local laws; and to submit quarterly reports to the
4 The ALJ determined the witnesses were all credible in their
demeanor while testifying, especially principal Reed. The
witnesses gave direct responses to questions, made good eye
contact, and gave no hint of prevarication. He thought Reed was
especially credible due in part to her personal experience with
those suffering from alcohol addiction.
10
Commission certifying under penalty of perjury her compliance
with all probation conditions.
4. Trial court proceedings
Plaintiff petitioned the Sacramento County Superior Court
for a writ of administrative mandate pursuant to Code of Civil
Procedure section 1094.5. She claimed the Commission abused its
discretion mainly in that its findings were not supported by the
weight of the evidence. In particular, she challenged the
sufficiency of the evidence supporting the Commission‟s finding
under the Morrison factors that plaintiff‟s conduct rendered her
unfit to teach. Plaintiff also sought attorney fees pursuant to
Government Code section 800 and Code of Civil Procedure sections
1021.5 et seq. and 1028.5 et seq.
The trial court denied plaintiff‟s petition. It determined
plaintiff‟s convictions demonstrated unfitness to teach as a
matter of law, or per se, under the rule of Watson v. State Bd.
of Education (1971) 22 Cal.App.3d 559, 563 (Watson). Thus, it
found it unnecessary to reach plaintiff‟s argument that no
evidence supported the Commission‟s findings under the Morrison
factors.
Nevertheless, the trial court stated the Morrison factors
were relevant for reviewing the propriety of the discipline
imposed by the Commission. It reviewed the Commission‟s
findings under the Morrison factors and determined the findings
were supported by the weight of the evidence. It thus concluded
the penalty imposed by the Commission did not constitute an
11
abuse of discretion. The court entered judgment against
plaintiff and denied her requests for attorney fees.
Plaintiff appeals the judgment against her. She claims the
trial court erred (1) by adopting a per se test for determining
fitness to teach in lieu of applying the Morrison factors, and
(2) by limiting the Morrison factors to its review of the
reasonableness of the penalty. She also asserts (3) that when
the Morrison factors are properly applied to her case, no
substantial evidence supports a finding of unfitness to teach.
DISCUSSION
I
Standard of Review
“When a trial court rules on a petition for writ of mandate
following a license revocation [or suspension], it must exercise
its independent judgment to determine whether the weight of the
evidence supported the administrative decision. [Citations.]
After the trial court has exercised its independent judgment
upon the weight of the evidence, an appellate court‟s function
„is solely to decide whether credible, competent evidence
supports [the trial] court‟s judgment.‟ (Yakov [v. Board of
Medical Examiners (1968) 68 Cal.2d 67,] 69, 72 [„the question
before this court turns upon whether the evidence reveals
substantial support, contradicted or uncontradicted, for the
trial court‟s conclusion . . . .‟].)” (Finnerty v. Board of
Registered Nursing (2008) 168 Cal.App.4th 219, 227.)
We review questions of law de novo. (Bostean v. Los
Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.)
12
“Error of law is not reversible unless, on an examination of the
record, it appears to have resulted in a miscarriage of
justice.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,
§ 322, p. 369; see Cal. Const., art. VI, § 13.)
II
Use of Per Se Rule of Unfitness to Teach
Plaintiff claims the trial court erred when it adopted a
per se rule of unfitness to teach. She asserts Supreme Court
case law prohibits the application of a per se rule in a matter
such as this, and Watson at best established rebuttable
inferences a court could consider in addition to the Morrison
factors. We agree with plaintiff on this point, but we
ultimately conclude any error was not prejudicial.
A. Legal background
The Commission is authorized to revoke or suspend a
teacher‟s credentials for “immoral or unprofessional conduct
. . . or for any cause that would have warranted the denial of
an application for a credential or the renewal thereof, or for
evident unfitness for service.” (Ed. Code, § 44421.)
However, “[i]n order to satisfy constitutional due process,
„[t]he state‟s power to regulate a profession cannot be used
arbitrarily to penalize conduct having no demonstrable bearing
upon fitness for its practice.‟ (Cartwright v. Board of
Chiropractic Examiners (1976) 16 Cal.3d 762, 767.) Thus,
conduct used as a basis for revocation or suspension of a
professional license must demonstrate unfitness to practice that
profession. (Ibid.) . . . [¶]
13
“In Morrison, [supra, 1 Cal.3d 214], a public school
teacher resigned after it became known he engaged in a
homosexual relationship with another teacher. Thereafter the
State Board of Education revoked his life diplomas pursuant to
Education Code former section 13202, which authorized discipline
for „“immoral or unprofessional conduct.”‟ (Morrison, at p.
217, fn. 1; see also id. at pp. 218–220.) The Supreme Court
concluded terms such as „immoral,‟ „unprofessional,‟ or
„involving moral turpitude‟ are too broad and amorphous to be
used as a basis for the termination of a professional license.
Rather, it must be shown the conduct in question indicates an
unfitness to engage in the profession.
“The court explained: „Terms such as “immoral or
unprofessional conduct” or “moral turpitude” stretch over so
wide a range that they embrace an unlimited area of conduct. In
using them the Legislature surely did not mean to endow the
employing agency with the power to dismiss any employee whose
personal, private conduct incurred its disapproval. Hence the
courts have consistently related the terms to the issue of
whether, when applied to the performance of the employee on the
job, the employee has disqualified himself.‟ (Morrison, supra,
1 Cal.3d at pp. 224-225.) The court concluded the State Board
of Education could not abstractly characterize the conduct in
the case as „immoral,‟ „unprofessional,‟ or „involving moral
turpitude‟ within the meaning of Education Code former section
13202 unless that conduct indicated the petitioner was unfit to
14
teach. (Morrison, at p. 230.)” (Watson v. Superior Court
(2009) 176 Cal.App.4th 1407, 1416.)
The Morrison court went on to establish seven factors an
administrative agency such as the Commission should utilize to
determine whether the unprofessional conduct demonstrated
unfitness to teach: “In determining whether the teacher‟s
conduct thus indicates unfitness to teach the board may consider
such matters as [1] the likelihood that the conduct may have
adversely affected students or fellow teachers, [and] the degree
of such adversity anticipated, [2] the proximity or remoteness
in time of the conduct, [3] the type of teaching certificate
held by the party involved, [4] the extenuating or aggravating
circumstances, if any, surrounding the conduct, [5] the
praiseworthiness or blameworthiness of the motives resulting in
the conduct, [6] the likelihood of the recurrence of the
questioned conduct, and [7] the extent to which disciplinary
action may inflict an adverse impact or chilling effect upon the
constitutional rights of the teacher involved or other teachers.
These factors are relevant to the extent that they assist the
board in determining whether the teacher‟s fitness to teach,
i.e., in determining whether the teacher‟s future classroom
performance and overall impact on his students are likely to
meet the board‟s standards.” (Morrison, supra, 1 Cal.3d at pp.
229-230, fns. omitted.)
The Commission may also take into account the notoriety and
publicity accorded a teacher‟s conduct. (Board of Education v.
Jack M. (1977) 19 Cal.3d 691, 701, fn. 5 (Jack M.).) Moreover,
15
if the teacher‟s conduct is sufficiently notorious that the
students know or are likely to learn of it, and if the teacher
continues to model his past conduct, the Commission may infer
that the teacher‟s conduct may result in student emulation, but
such an inference is disputable. (Id., at p. 699 and fn. 4.)
B. Analysis
As explained above, the trial court was to determine
whether the weight of the evidence supported the Commission‟s
findings. Here, the trial court concluded it was not necessary
in this case to weigh the evidence under the Morrison factors to
determine if plaintiff‟s actions rendered her unfit to teach.
Rather, it concluded under Watson that plaintiff‟s convictions
rendered her unfit to teach per se. This was incorrect.
A teacher whose credential is being investigated for
possible adverse action is per se unfit to teach only when the
teacher has been convicted of a crime which the Legislature has
declared requires the imposition of automatic sanctions on that
teacher‟s credentials. (Jack M., supra, 19 Cal.3d at p. 698,
fn. 3; Pettit v. State Board of Education (1973) 10 Cal.3d 29,
33.) In all other circumstances, fitness to teach is a question
of ultimate fact. (Jack M., supra, 19 Cal.3d at p. 698, fn. 3;
West Valley-Mission Community College Dist. v. Concepcion (1993)
16 Cal.App.4th 1766, 1775.)
Driving under the influence is not an offense specified by
the Legislature as sufficient per se to justify suspension or
revocation of teaching credentials. (See, e.g., Ed. Code, §§
44424, subd. (a) [conviction of listed serious felonies requires
16
automatic revocation]; 44425, subd. (a) [conviction of certain
sex offenses and controlled substance offenses requires
automatic suspension].)
Thus, the trial court erred in concluding plaintiff‟s
driving under the influence convictions rendered her unfit to
teach per se. Plaintiff was entitled to a fitness hearing where
the trier of fact weighed the Morrison factors to determine
whether she was unfit to teach on account of her unprofessional
conduct. (Jack M., supra, 19 Cal.3d at p. 702.)
The trial court‟s reliance on Watson as the basis for
imposing a per se rule of unfitness based upon plaintiff‟s
convictions is misplaced. In Watson, the Second Appellate
District Court of Appeal affirmed a trial court‟s determination
that an applicant for a teaching credential who had six alcohol
convictions over a 10-year period, and a seventh while his
application was pending, was unfit to teach. (Watson, supra, 22
Cal.App.3d at pp. 560-561.) The only evidence of unfitness to
teach was the applicant‟s convictions, and the appellate court
held they were sufficient evidence to demonstrate unfitness.
(Id. at p. 563.)
The Watson court‟s holding was based in part on its belief
that Morrison was “a narrow decision, limited to its
facts . . . .” (Watson, supra, 22 Cal.App.3d at p. 562.) More
than five years after Watson was decided, however, the Supreme
Court reaffirmed its Morrison ruling and expanded its
application. In Jack M., the high court stated Morrison applied
not only to a credential revocation but also to a proceeding for
17
dismissal of a credentialed teacher on the basis of immoral or
unprofessional conduct. (Jack M., supra, 19 Cal.3d at p. 697,
fn. 2.) In addition, the court stated that Morrison “made it
clear that the [fitness] hearing could not be limited to the
single question whether the teacher committed the charged
[criminal] act.” (Id. at p. 701, fn. omitted.) A person
convicted of a crime not listed as requiring automatic sanction
is entitled to a fitness hearing that determines fitness based
on the Morrison factors. (Ibid.) To the extent Watson holds
otherwise, we decline to follow it.
Having now concluded the trial court erred in applying a
per se rule, we must determine whether the error was
prejudicial. As we will explain, it was not.
III
Lack of Prejudicial Error
A judgment may not be reversed on appeal unless “after an
examination of the entire cause, including the evidence,” it
appears the error caused a “miscarriage of justice.” (Cal.
Const., art. VI, § 13.) “When the error is one of state law
only, it generally does not warrant reversal unless there is a
reasonable probability that in the absence of the error, a
result more favorable to the appealing party would have been
reached. [Citation.]” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 574.)
To apply this standard, we review the record to determine
if an error of law was prejudicial “when considered in light of
the weight of the evidence. And the process is, in a sense, a
18
review of facts.” (9 Witkin, Cal. Procedure, supra, § 322, p.
369.)
In this matter, we can say without hesitation there is not
a reasonable probability plaintiff would have received a more
favorable judgment had the trial court not applied a per se rule
to determine her fitness to teach. We know this because the
trial court, in addition to applying a per se rule, weighed the
evidence under the Morrison factors. Although it did this in
the context of determining the reasonableness of the penalty, it
weighed all of the evidence and performed the same analysis it
would have performed had it applied the Morrison factors to the
issue of plaintiff‟s fitness to teach. It determined the weight
of the evidence supported the Commission‟s findings of fact
under the Morrison factors. We reach the same conclusion.
Only the pertinent Morrison factors need to be analyzed.
(West Valley-Mission Community College Dist. v. Concepcion,
supra, 16 Cal.App.4th at p. 1777.) The trial court reviewed six
of the seven. We will do the same.
Factor No. 1: Likelihood that plaintiff‟s conduct may have
adversely affected students or teachers. The evidence supports
the trial court‟s finding that plaintiff‟s behavior and
conviction may have adversely affected students or teachers.
There is conflicting evidence on this point. Plaintiff
testified that only a coworker and her principal knew of the
conviction. The principal also stated plaintiff was an
excellent teacher who had never exhibited traits of alcoholism
at work. However, plaintiff was required to wear an ankle
19
bracelet at school to fulfill her sentence. Students may have
seen her wearing the bracelet. Morrison asks us to focus on the
“likelihood” that this conduct “may” have adversely affected
students and other teachers. (Morrison, supra, 1 Cal.3d at p.
229.) We agree with the trial court that plaintiff‟s wearing an
ankle bracelet to school for a month may have adversely affected
others. It especially would have adversely impacted plaintiff‟s
ability to earn the respect of her students.
Factor No. 2: The proximity or remoteness in time of the
conduct. The evidence supports the court‟s finding that
plaintiff‟s conduct was not remote in time. Her conduct took
place in late 2001, she was convicted in 2002, and the
Commission began its hearing two years later. The court also
noted her conduct was not remote in time even as of the 2008
hearing on plaintiff‟s petition “given [plaintiff‟s] record of
repeated convictions occurring at intervals of ten and five
years.” We agree with that assessment.
Factor No. 3: The type of plaintiff‟s teaching credential.
The evidence supports the court‟s finding that the type of
credential plaintiff held was relevant to determining her
fitness to teach under these circumstances. Plaintiff‟s
credential authorized her to teach elementary school children,
and she was in fact teaching fifth grade at the time of her 2002
conviction. “Given the impressionable nature of children at
that age,” the court wrote, “which is not disputed here,
[plaintiff‟s] multiple alcohol-related convictions are of
serious concern.” We agree with this finding.
20
Factor No. 4: Extenuating or aggravating circumstances, if
any, surrounding the conduct. The evidence supports the trial
court‟s conclusion that aggravating circumstances surrounding
the conduct bore upon plaintiff‟s fitness to teach. On her 2002
conviction, plaintiff admitted she had a blood-alcohol content
of .25 percent when she was arrested, more than three times the
legal limit. Yet she was willing to endanger public safety by
driving while severely intoxicated. As the trial court found,
such irresponsible conduct “is incompatible with a teacher‟s
status and duties.”
Factor No. 5: The praiseworthiness or blameworthiness of
the motives resulting in the conduct. The evidence supports the
court‟s finding that there was nothing praiseworthy about
defendant‟s conduct. “The lack of praiseworthiness in
[plaintiff‟s] conduct speaks for itself.”
Factor No. 6: The likelihood of the recurrence of the
questioned conduct. The evidence supports the court‟s finding
of a risk that plaintiff will reoffend. Plaintiff testified she
no longer drinks and drives. However, this was her third
conviction, after having been on probation for three years for
her second offense and after attending alcohol education classes
and Alcoholics Anonymous. Moreover, plaintiff continues to
drink regularly. As the trial court stated, these facts raise a
legitimate concern about whether plaintiff will reoffend.
Plaintiff‟s expert testimony did not diffuse the
possibility of her reoffending. Although Cronin stated
plaintiff was not an alcoholic, Brown stated she had a
21
probability of “acting out.” And Cronin defined a probability
of acting out as a person with a personality who might drink and
drive. Although Cronin thought plaintiff would not drink and
drive again, his testimony implied there was a risk she would.
Our review of the record thus indicates the trial court
reached the correct result under Morrison. Because the trial
court applied the Morrison factors to the evidence and found the
suspension was justified, it is not likely it would have reached
a different conclusion had it applied the Morrison factors on
the issue of fitness to teach. It effectively applied Morrison
to both issues.
Plaintiff faults the Commission and the trial court for
allegedly not giving deference to the ALJ‟s factual findings
based on his determination of the witnesses‟ credibility. She
relies on Government Code section 11425.50, subdivision (b),
which requires reviewing courts to give great weight to factual
determinations based substantially on the credibility of a
witness where the ALJ identifies specific evidence of
credibility that supports the factual determination.5
5 The statute reads in relevant part: “If the factual basis
for the decision includes a determination based substantially on
the credibility of a witness, the statement shall identify any
specific evidence of the observed demeanor, manner, or attitude
of the witness that supports the determination, and on judicial
review the court shall give great weight to the determination to
the extent the determination identifies the observed demeanor,
manner, or attitude of the witness that supports it.” (Gov.
Code, § 11425.50, subd. (b).)
22
Here, the ALJ found plaintiff‟s witnesses to be credible
based on their demeanor and, with Reed, her personal experience.
Plaintiff argues that under Government Code section 11425.50, we
must give great weight to their testimony and should adopt the
ALJ‟s decision.
Government Code section 11425.50 is not as binding on us as
plaintiff suggests. “As reflected in the Law Revision
Commission comments to section 11425.50: „Findings based
substantially on credibility of a witness must be identified by
the presiding officer in the decision made in the adjudicative
proceeding. . . . However, the presiding officer‟s
identification of such findings is not binding on the agency or
the courts, which may make their own determinations whether a
particular finding is based substantially on credibility of a
witness. Even though the presiding officer‟s determination is
based substantially on credibility of a witness, the
determination is entitled to great weight only to the extent the
determination derives from the presiding officer‟s observation
of the demeanor, manner, or attitude of the witness. Nothing in
subdivision (b) precludes the agency head or court from
overturning a credibility determination of the presiding
officer, after giving the observational elements of the
credibility determination great weight, whether on the basis of
nonobservational elements of credibility or otherwise. See
Evid. Code, § 780.‟ (25 Cal. Law Revision Com. Rep. [(1995)] at
p. 161 . . . .)” (California Youth Authority v. State Personnel
Bd. (2002) 104 Cal.App.4th 575, 588, italics omitted.)
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We have considered the testimony of plaintiff‟s witnesses.
Unfortunately for plaintiff, that testimony either did not
address all of the Morrison factors or it undercut itself, and
thus is not entitled to the dispositive effect plaintiff hopes
to obtain. We do not question Reed‟s credibility to the extent
she testified of facts. However, Reed admitted plaintiff, a
role model, engaged in unprofessional conduct. Her statement
that plaintiff made “three very poor choices” discounts what
plaintiff really did: she committed three criminal acts that
endangered the safety of the public. Reed‟s testimony also
addressed only one of the Morrison factors, and plaintiff‟s
fitness to teach is to be based on more than just the
principal‟s observations of plaintiff.
Plaintiff‟s experts fare worse. Even though plaintiff has
been convicted three separate times for DUI, has served jail
time, has been on criminal probation twice, has attended
Alcoholics Anonymous for many months, and has participated in
court-ordered drinking driving programs, she continues to drink.
According to her experts, she drinks from one to three drinks of
alcohol in a 24-hour period of time, occasionally consuming as
much as four drinks in a day. And yet her experts claim the
likelihood of her reoffending is small, even though they admit
she has a probability of acting out, which they state means a
possibility of drinking and driving again. The weight of all of
the evidence in this case simply does not support the experts‟
conclusions.
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We thus conclude the trial court‟s incorrect application of
a per se test did not result in prejudicial error. The court
applied the relevant Morrison factors as found by the Commission
and determined the weight of the evidence supported them. Our
review of the record indicates the trial court reached the
correct result under Morrison. Accordingly, the trial court
would have determined that the Morrison factors indicated
plaintiff was unfit to teach.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to
the Commission. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON , Acting P. J.
We concur:
RAYE , J.
HULL , J.
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